Superior Court turns down 1M reais indemnification claim of ex-smoker against Brazil's biggest cigarette company Souza Cruz on grounds that cigarettes are an inherently dangerous product and that consumers make their own decision to smoke

Michelle Rivera

BRASILIA, Brazil , December 19, 2011 (press release) – By unanimous vote (5x0), the 4th Panel of the Superior Justice Tribunal (STJ) rejected on Thursday (12/16/2011) the indemnification claim brought by ex-smoker Maria Aparecida da Silva. The Court heard the special appeal of cigarette manufacturer Souza Cruz and overruled the decision of the lower courts which had awarded over R$ 1 million to the ex-smoker. The judgment yesterday makes it the eighth suit of this nature analyzed by the Superior Court, which has dismissed on merits every one of the indemnification claims brought by smokers, ex-smokers or their relatives.

The case was originally filed as an indemnification claim brought by Maria Aparecida da Silva at the 32nd Civil Court of Sao Paulo. In brief terms, the plaintiff alleged that she developed circulatory disorders which she ascribed exclusively to smoking certain brands of cigarettes manufactured by Souza Cruz. As redress, plaintiff's claim sought to indemnification for moral and material damages, in amount greater than R$ 1 million. These requests were partially recognized by the courts of 1st and 2nd instances.

Souza Cruz then appealed, taking the case to the Superior Court. In addition to the extensive body of case precedents rejecting this type of claim – more than 730 rulings, 7 of which of the Superior Court itself – the cigarette manufacturer contended in its appeal that the risks associated with smoking cigarettes have long been public knowledge; that consumers have the free will to choose to smoke (or not); that there Is no defect in the product, no direct and immediate causal link between the alleged damage and smoking cigarettes and that to manufacture and sell cigarettes is a legal activity.

Similar to their previous rulings, the justices of the Superior Court accepted Souza Cruz's appeal and rejected the indemnification claim on grounds that cigarette is an inherently dangerous product, the decision to use of which lies exclusively with the consumer. Furthermore, advertising of cigarettes does not interfere in the free will of the consumers, who may elect to smoke or not. According to the justices, these factors, among others, exclude the liability of cigarette manufacturers for damages ascribed to smoking cigarettes.

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